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[2021] ZASCA 158
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Rautini v Passenger Rail Agency of South Africa (853/2020) [2021] ZASCA 158 (8 November 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case No:
853/2020
In the matter between:
MASIBULELE
RAUTINI
APPELLANT
and
PASSENGER
RAIL AGENCY OF SOUTH AFRICA
RESPONDENT
Neutral citation:
Rautini
v Passenger Rail Agency of South Africa
(Case
no. 853/2020)
[2021] ZASCA 158
(8 November 2021)
Coram:
MBHA,
CARELSE and MOTHLE JJA and PHATSHOANE and MOLEFE AJJA
Heard:
9 September 2021
Delivered:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email, publication on the Supreme
Court of Appeal website and
release to SAFLII. The date and time for hand-down is deemed to be
10h00 on 8 November 2021.
Summary
:
Law of evidence – admissibility – whether discovered
documents were correctly admitted into
evidence without proof of the
contents – whether the full court drew correct inferences from
evidence tendered – whether
the appellant was a credible
witness and whether the full court was correct in rejecting his
version of events – appeal upheld
with costs.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Desai, Mabindla-Boqwana and Savage JJ
sitting as a court of appeal):
1
The appeal is upheld with costs including those of two counsel where
so employed.
2
The order of the full court is set aside
and replaced with the following order:
‘
The appeal is dismissed with costs.’
JUDGMENT
Molefe
AJA (Mbha, Carelse and Mothle JJA and Phatshoane AJA concurring):
[1]
This appeal is against the judgment and order of the full court of
the Western Cape
Division of the High Court, Cape Town (the full
court), sitting as a court of appeal, handed down on 8 July 2020. The
appeal is
with special leave from this Court.
[2] The appellant claimed
damages against the respondent for injuries sustained during
an
incident on 19 November 2011. At the time of the incident, the
appellant was a passenger in a train operated by the respondent.
The
incident occurred on a railway line between the Du Toit and Lynedoch
train stations in Cape Town.
[3]
At the commencement of the trial, the merits and quantum were
separated in terms of
Uniform Court Rule 33(4). The trial court, per
McCurdie AJ, gave judgment in the appellant’s favour on the
merits and found
the respondent liable for all proven or agreed
damages suffered by the appellant. This Court granted leave to appeal
to the full
court, which upheld the appeal and dismissed the
appellant’s claim. The appellant then turned to this Court to
appeal the
full court’s decision.
[4] The appellant was a
single witness and the only witness to give evidence on how the
incident occurred. He was a gardener at Spier Wine Estate. On the
morning of 19 November 2011, he boarded the train at Du Toit
station
and was on his way to work. He testified that he usually disembarked
the train at Lynedoch station and would walk back
to Spier Wine
Estate. It is common cause that Spier station is used for private
Spier events as scheduled trains never stopped
there. The appellant’s
evidence is that the doors of the train were open when the train left
Du Toit station and remained
open throughout the journey.
[5] Just before Lynedoch
station, a gang of three men appeared and threatened the passengers
with a knife and a gun, demanding their cell phones. In a scuffle
with one of them, the appellant was thrown out of the moving
train.
The appellant does not remember where he fell. Other evidence
indicates that he was later found on the platform at Spier
station.
He was seriously injured and was taken to Stellenbosch hospital in an
ambulance. He regained consciousness at the Paarl
General Hospital.
[6]
The respondent called witnesses whose testimony did not shed any
light on how the
incident concerned occurred. Importantly, as regards
the cause of the appellant falling out of the train, the respondent
failed
to lead the evidence of the Metrorail security guard at
Lynedoch station who reported the incident. The evidence of this
witness
might have been able to give an account on how and where the
appellant fell from the train.
[7]
The full court rejected the appellant’s version about how the
incident occurred
and found that his version was inconsistent with
the version contained in discovered documents, in particular the
medical and the
ambulance reports. According to the ambulance report,
the incident occurred at ‘Spier station Lynedoch station’.
It
also states that a ‘[m]ale patient fell from the moving
train.’ The medical report however, recorded that according
to
an ambulance officer he was thrown out of train or jumped. Despite
the clear disparity between these two documents, the full
court found
that the appellant’s version ought to be rejected on the basis
that the contents of the discovered documents,
more particularly the
notes contained in the medical records discovered by the appellant,
were credible, acceptable and accordingly
admissible.
Admissibility of
hearsay evidence
[8] This
appeal raises the important issue regarding the admissibility of the
contents
of discovered documents, without the author having to
testify about the correctness of the contents thereof. Counsel for
the appellant
argued that the medical records could not be relied on
as they constituted hearsay evidence.
[1]
The full court however attached considerable
weight to them on the basis that the appellant, who in fact
discovered them, never
disputed their veracity. It then concluded
that the appellant in fact supported the respondent’s version
of events.
[9]
Section 3(1) of the Law of Evidence Amendment Act 45 of 1988 (the
Law
of Evidence Amendment Act) reads
as follows:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
–
(a)
each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings;
(b)
the person
upon whose credibility the probative value of such evidence depends,
himself testifies at such proceedings; or
(c)
the court,
having regard to –
(i) the
nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the
evidence is tendered;
(iv) the probative value of the
evidence;
(v) the reason why the evidence
is not given by the person upon whose credibility the probative value
of such evidence depends;
(vi) any prejudice to a party
which the admission of such evidence might entail; and
(vii) any other factor which
should in the opinion of the court be taken into account,
is
of the opinion that such evidence should be admitted in the interest
of justice.’
[10]
The record indicates that the appellant’s counsel in his
opening address at the trial expressly
stated that the discovered
documents are what they purport to be, but that the correctness of
the contents was not admitted. This
was confirmed by the respondent’s
counsel in this Court. In his heads of argument, the respondent’s
counsel confirmed
that the documents were expressly admitted as
evidence, although the content would remain hearsay evidence in the
sense that the
authors would not have to be called. Furthermore, to
call the authors as witnesses was ‘unnecessary in view of the
agreement
between the parties and would have been a waste of the
court’s time’.
[11] The contents of
the hospital records and medical notes constituted hearsay evidence,
and it is
trite that hearsay evidence is prima facie inadmissible.
[2]
The discovery thereof by the appellant in terms of
the rules of court does not make them admissible as evidence against
the appellant,
unless the documents could be admitted under one or
other of the common law exceptions to the hearsay rule.
[12]
It is common cause that the respondent’s counsel made no
application for any of the hearsay
evidence to be admitted in terms
of
s 3
of the
Law of Evidence Amendment Act. In
the circumstances,
the full court’s finding that material differences existed
between the appellant’s version and the
medical records
regarding where he fell from the train, the cause of his fall and his
first lucid recollection after the fall,
was erroneous. The full
court’s reliance on hearsay evidence in that regard amounts to
a material misdirection that vitiates
its ultimate finding on the
outcome of the appeal that was before it.
[13]
In any event, of all the reports relied upon by the respondent, only
one report mentioned the
word ‘jumped.’ The remainder of
the reports mentioned the word ‘fell’.
Failure to
cross-examine the appellant
[14]
The facts of this case fall squarely within those in
President of
the Republic of South Africa vs South African Rugby Football Union
(SARFU),
where the Constitutional Court held as follows:
‘
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule, it is
essential
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our courts.’
[3]
[15]
The reason for this rule is clear. As was stated in
S
v Boesak
[4]
the rule, which is part of the practice of our
courts, is followed to ensure that trials are conducted fairly, and a
witness is
afforded the opportunity to answer challenges to his or
her evidence and is not ambushed. The appellant in
casu
gave his version of events under oath.
The respondent adduced no direct evidence to contradict the
appellant’s version. The
trial court accepted the appellant’s
evidence and his version of events.
[16]
The only witness called by the respondent concerning the contents of
the hospital notes was Dr
Herman Visagie, a family physician employed
at Stellenbosch Hospital. He conceded that he could not recall the
appellant or whether
he in fact spoke to him after his admission at
the hospital. He also could not say whether the appellant had
provided him with
information regarding the nature of the incident.
[17] The full court considered as
relevant the fact that an incident as serious as that of robbery
and
attempted murder on a train was not reported to the police or the
respondent, and that it only came to light a year later when
the
appellant lodged a claim with the respondent. The full court then
drew the inference that the appellant’s version of
events was a
recent fabrication.
[18] It is important to note that the
appellant was never cross-examined on what he had told the
medical
personnel at the Stellenbosch, Tygerberg and Paarl hospitals, the
ambulance personnel, PRASA and the Stellenbosch Justice
Centre
regarding the cause of the fall. Neither was he cross-examined about
when he had first related to anyone that assailants
had pushed him
from the train. If the respondent had wanted to suggest that the
appellant’s version, that he was pushed from
the train, was a
recent fabrication, it should have explored this aspect with the
appellant. In the absence of cross-examination
of the appellant on
this aspect, the full court committed a material misdirection when it
found that his version only became known
a year later. There was
simply no evidence to support such a finding.
[19]
The appellant’s evidence was that he was late for work that
morning and that the train
did not stop at Spier station. The full
court then found that the inference sought to be drawn by the
[respondent] was that the
[appellant] was late for work and probably
jumped out of the moving train at the Spier station which was why the
records indicated
that the incident occurred at that station.
However, the appellant was never afforded the opportunity to respond
to the respondents’
hypothesis that because he was late for
work, therefore he jumped out of a moving train at Spier station.
[20]
The respondent submitted that when the appellant went into the
witness box, he knew exactly what
evidence was already placed before
the court, and that he had every opportunity ‘to deny the
challenge, to call corroborative
evidence, to qualify the evidence
given by the witness or others and to explain contradictions on which
reliance is to be placed.’
This argument has no merit. Prior
notice was not given to the appellant that the respondent intended to
use the documentary evidence
to impeach his credibility.
[21]
The first difficulty facing the respondent is that it never pleaded
the issues raised above.
It is also significant that it did not plead
that the appellant had deliberately jumped from the train at Spier
station. This Court
in
Minister of Safety and Security v Slabbert
held as follows:
‘
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.’
[5]
[22]
The second difficulty facing the respondent is that during
cross-examination, it never put to
the appellant that he had
deliberately jumped from the train because he was late for work.
Instead, it was put to the appellant
that the Stellenbosch hospital
records showed that, he was ‘thrown out, fell or jumped’
from the train. The appellant
remained adamant that armed robbers
threw him out of the train. In any event, the ambivalence of this
notation supports either
version.
[23]
The Constitutional Court in
SARFU
emphasised the importance of
expressly and adequately putting a version to the other party in
cross-examination as follows:
‘
The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is
to be challenged but also
how
it is to be challenged.’
[6]
It must be
emphasised that the failure to put a version even where it should not
have been put, does not necessarily warrant an
inference that the
witness’s version is a recent fabrication. This would be unfair
to the witness and may lead to an incorrect
finding. The full court
relied heavily on inferences drawn from inadmissible hearsay evidence
and evidence that was not substantiated
or proven.
[24]
The general rule regarding the drawing of inferences is clear. A
court may only draw inferences
that are consistent with all the
proven facts, and where one or more inferences are possible, it must
satisfy itself that the inference
sought to be drawn is the most
probable inference.
[7]
[25]
It is common cause between the parties that the carriage doors were
open throughout the journey
since it was an established fact that the
appellant fell from the train through the open doors of the carriage.
In
Mashongwa v PRASA
,
the Constitutional Court held that this constituted negligence on the
part of PRASA, and that PRASA’s failure to keep the
doors
closed while the train was in motion, attracted liability.
[8]
In essence, the appellant would not have suffered
injuries in the manner he did if the carriage doors were closed while
the train
was in motion.
[26]
In the result, I make the following order:
1
The appeal is upheld with costs including those of two counsel where
so
employed.
2
The order of the full court is set aside and replaced with the
following
order:
‘
The appeal is dismissed with costs’.
D S MOLEFE
ACTING
JUDGE OF APPEAL
APPEARANCES
For
appellant:
J
H Roux SC and A J du Toit
Instructed
by:
DSC
Attorneys, Cape Town
Rosendorff
Reitz Barry, Bloemfontein
For respondent:
T
D Potgieter SC
Instructed
by:
Werkmans
Attorneys, Cape Town
Lovious Block Inc, Bloemfontein.
[1]
According to
s 3(4)
of the
Law of Evidence
Amendment Act 45 of 1988
hearsay evidence ‘means
evidence, whether oral or in writing, the probative value of which
depends upon the credibility
of any person other than the person
giving such evidence’.
[2]
See
Zungu NO v
Minister of Safety and Security
2003
(4) SA 87
(D) at 90D.
[3]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
;
1999 (10)
BCLR 1059
para 61.
[4]
S v Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
(CC);
2001 (1) SA 912
(CC) para
26.
[5]
Minister of Safety and Security v Slabbert
[2009] ZASCA 163
;
[2010] 2 All SA 474
(SCA) para 11.
[6]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
(CC);
1999
(10) BCLR 1059
(CC) para 63
.
[7]
AA Onderlinge Assuransie-Assosiasie Bpk v De
Beer
1982 (2) SA 603 (A).
[8]
Mashongwa vs PRASA
[2015] ZACC 36
;
2016 (2) BCLR 204
(CC);
2016 (3) SA 528
(CC) para
69.